Gottwald v. Sebert, s. 32

CourtNew York Court of Appeals
Citation2023 NY Slip Op 03183
Decision Date13 June 2023
PartiesLukasz Gottwald, & c., et al., Respondents, v. Kesha Rose Sebert, & c., Appellant, et al., Defendants.
Docket Numbers. 32,33

Anton Metlitsky, for appellant.

Christine Lepera, for respondents.

Legal Momentum et al.; Samuel D. Isaly; Advance Publications, Inc. et al.; and Maria Kim Grand, amici curiae.

Anton Metlitsky, for appellant.

David A. Steinberg, for respondents.

Samuel D. Isaly; National Women's Law Center et al.; and The Reporters Committee for Freedom of the Press et al., amici curiae.


Plaintiff in this defamation suit, Lukasz Gottwald ("Gottwald"), is a music producer known as "Dr. Luke." Defendant Kesha Rose Sebert ("Sebert") is a singer and songwriter known as "Kesha." Sebert signed a recording contract with one of Gottwald's companies in 2005 and the arrangement produced several successful albums. However, in 2014, Sebert sought to void her contractual arrangement with Gottwald by filing an action in California, alleging that Gottwald raped her shortly after she signed the original recording deal. In response, Gottwald brought this action in New York alleging that statements made by Sebert and her agents with respect to the alleged sexual assault were defamatory. We hold that Gottwald is a limited public figure who must prove by clear and convincing evidence that Sebert acted with actual malice that five of the allegedly defamatory statements are privileged as a matter of law while the issue of privilege as to the remaining 20 statements must be resolved by a jury and that certain provisions of the 2020 amendments to Civil Rights Law §§ 76-a and 70-a apply to this action.


Gottwald, in addition to being a music producer, also owns several companies, including plaintiffs Kasz Money, Inc. ("KMI") and Prescription Songs, LLC. In 2005, Gottwald signed Sebert, an aspiring singer and songwriter, to a record deal through KMI. Sebert alleges that a short time later Gottwald raped her-an allegation he has denied. Through her representatives, Sebert subsequently attempted to gain her release from the KMI agreement based on the alleged sexual assault. Those efforts were unsuccessful. Instead, in 2008, the parties amended the KMI agreement and entered into separate publishing and recording agreements. In 2010, Gottwald and KMI released two commercially successful albums with Sebert, and in 2012, Gottwald and Sebert released a third album through another of Gottwald's record labels.

By 2012, however, Sebert sought to renegotiate the terms of her agreements with Gottwald but attempts to settle the dispute were once more unsuccessful. Sebert then commenced an action against Gottwald and his various companies in California, alleging that Gottwald had raped her in 2005 and seeking damages as well as an injunction voiding her contracts with plaintiffs. Gottwald filed this action in Supreme Court, New York County, that same day. The operative complaint pleads two counts of defamation against Sebert. The first asserts that she acted with malice in making false statements regarding the alleged rape. The second count is based on a statement made by Sebert alleging Gottwald raped another female recording artist. [1]

The California court granted Gottwald's motion for a stay of that action, while Sebert filed counterclaims here based on the same allegations contained in her California complaint. She then moved in Supreme Court for a preliminary injunction asking the court to enjoin Gottwald and his companies from interfering with her attempts to work with others and to prevent them from enforcing any contractual exclusivity and ownership provisions. The court denied the injunction. In 2016, Supreme Court granted Gottwald's motion to dismiss Sebert's counterclaims as, inter alia, time-barred and outside Supreme Court's subject matter jurisdiction (2016 NY Slip Op 32815 [U] [Sup Ct, NY County 2016]). Sebert appealed the denial of the injunction and dismissal of her counterclaims but later withdrew both appeals and voluntarily dismissed her California action [2].

After completing discovery, the parties cross-moved for summary judgment. As relevant here, Sebert argued that Gottwald is a public figure and can recover for defamation only upon proof that the alleged defamatory statements were made with actual malice, and that 25 of those statements cannot serve as the basis for liability in any event because they are privileged. Supreme Court granted partial summary judgment in favor of Gottwald and denied Sebert's motion (2020 NY Slip Op 30347 [U], at *5 [Sup Ct, NY County 2020]). Sebert appealed.

In 2020, while that appeal was pending, the Legislature amended a 1992 statute designed to protect certain individuals who face targeted litigation for their participation in public affairs, i.e., Strategic Lawsuits Against Public Participation ("SLAPP" suits). The 1992 law-New York's anti-SLAPP statute (L 1992, ch 767)-is codified in Civil Rights Law § 76-a and § 70-a. Sebert moved in Supreme Court for a ruling that the 2020 amendments to the anti-SLAPP statute apply to this action and for leave to assert a counterclaim for attorney's fees, damages for emotional distress, and punitive damages, as permitted by the amended statute. That court agreed, holding that the amendments applied retroactively to pending claims and granting Sebert leave to file a counterclaim. Gottwald appealed that decision.

The Appellate Division, in two separate opinions, reversed on the application of the anti-SLAPP statute, holding that the amendments were not retroactive and so did not apply to this litigation, and affirmed Supreme Court's holding that Gottwald was not a public figure and that issues of fact precluded the grant of summary judgment on certain defamatory statements (203 A.D.3d 488 [1st Dept 2022]; 193 A.D.3d 573 [1st Dept 2021]). The respective panels granted Sebert leave to appeal, certifying in each case the question of whether the orders were properly made. We answer each question in the negative.


We first consider whether Gottwald is a public figure such that he must prove the allegedly defamatory statements were made with "actual malice" (see Huggins v Moore, 94 N.Y.2d 296, 301 [1999]). If subject to that standard, Gottwald would be required to prove by clear and convincing evidence that each statement was made "with either knowledge that it was false or reckless disregard for the truth" (id.; see also New York Times Co. v Sullivan, 376 U.S. 254, 279-280 [1964]). This actual malice standard need not apply to private figures (see Wolston v Reader's Digest Ass'n, Inc., 443 U.S. 157, 164 [1979]); rather, "the States may define for themselves the appropriate standard of liability" for those individuals (Gertz v Robert Welch, Inc., 418 U.S. 323, 347 [1974]). In New York, the accepted standard for private figures is negligence (see Krauss v Globe Intl., 251 A.D.2d 191, 194 [1st Dept 1998]; see also Kesner v Buhl, 590 F.Supp.3d 680, 692 [SD NY 2022]).

"The category of public figures is of necessity quite broad" (James v Gannett Co., 40 N.Y.2d 415, 422 [1976] [internal quotation marks and citation omitted]). At the same time, public figure status "is a matter of degree" (id. at 423). Certain individuals may be considered public figures for all purposes while others "may invite publicity only with respect to a narrow area of interest" and may fairly be considered public figures only where the alleged defamation relates to the publicity they sought (id.). One becomes such a limited-purpose public figure through some "purposeful activity," by which the individual has "thrust" themself "into the public spotlight and sought a continuing public interest in [their] activities" (id. at 423; see also Maule v NYM Corp., 54 N.Y.2d 880 [1981]). In that case, an otherwise private individual may properly be considered "a public personality" (id.; see Kipper v NYP Holdings Co., Inc., 12 N.Y.3d 348, 353 n 3 [2009]). We agree with the dissent below that Gottwald meets this standard and is a limited-purpose public figure (193 A.D.3d at 587 [Scarpulla, J., dissenting] [Gottwald "purposefully and continuously publicized and promoted his business relationships with young female artists, like (Sebert), to continue to attract publicity for himself and new talent for his label"]).

By 2014, when Gottwald initiated this defamation action, he was, by his own account, a celebrity-an acclaimed music producer who had achieved enormous success in a high-profile career. As self-described in the complaint, he "has written the most Number One songs of any songwriter ever" and "was named by Billboard as one of the top ten producers of the decade in 2009." Gottwald's engagement with the media was "obviously designed to project his name and personality" before a wide audience to establish his reputation in this field (see Maule, 54 N.Y.2d at 882). He purposefully sought media attention for himself, his businesses, and for the artists he represented, including Sebert, to advance those business interests (see James, 40 N.Y.2d at 423). He had been featured in various publications, as well as on radio and television, highlighting the nature of his relationships with those artists and his development of their talent and careers. Sebert alleged that, shortly after establishing a professional relationship as her producer, Gottwald sexually assaulted her. Therefore, Gottwald is appropriately considered a limited-purpose public figure, and as a result he must prove that Sebert's allegedly defamatory statements were made with actual malice.


Sebert identifies 25 allegedly defamatory statements that she contends cannot serve as the basis for liability because they are protected by one or more of three privileges:...

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